474 F.

2d 259

UNITED STATES of America ex rel. Milton RIVERA,

Relator-Appellant,
v.
Charles L. McKENDRICK, as Warden of Wallkill State
Prison,
Ulster County, New York, Respondent-Appellee.
No. 306, Docket 72-1701.

United States Court of Appeals,

Second Circuit.
Argued Jan. 12, 1973.
Decided Feb. 15, 1973.

John R. Hupper, New York City (J. Barclay Collins, New York City, on
the brief), for appellant.
Lillian Z. Cohen, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State
of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the
brief), for appellee.
Before LUMBARD, KAUFMAN and MANSFIELD, Circuit Judges.
LUMBARD, Circuit Judge:

Milton Rivera appeals from an order of the Southern District, dated April 19,
1972, which denied, after a hearing, his petition for habeas corpus. We affirm.

Rivera was convicted of robbery, assault, and possession of a dangerous

weapon after trial before a jury in Kings County in 1965. On October 21, 1969
Rivera filed a petition for habeas corpus, alleging that his state court
conviction, "which was based solely on the identification testimony of two
victims of the crimes, was obtained in violation of due process of law, because
the victims' in-court identification of Rivera was tainted by impermissibly
suggestive pretrial identification procedures used by the police." U. S. ex rel.
Rivera v. McKendrick, 448 F.2d 30, 31 (2d Cir. 1971), cert. denied 404 U.S.

1025, 92 S.Ct. 678, 30 L.Ed.2d 675 (1972). See Stovall v. Denno, 388 U.S.
293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States ex rel.
Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908,
91 S.Ct. 151, 27 L.Ed.2d 146 (1970). Judge McLean denied the petition
without holding an evidentiary hearing. Rivera appealed from this summary
denial and we reversed, finding that "the totality of circumstances surrounding
the out-of-court confrontations in this case-the photographs and then the oneman show-up twelve days after the crime-lead us to conclude that the pre-trial
identification procedures used here were unnecessarily suggestive and
conducive to mistaken identification." United States ex rel. Rivera v.
McKendrick, supra at 34.
3

Because the record was inadequate for a determination of whether the

witnesses' in-court identification was irreparably tainted by these procedures,
we remanded the case to the district court for an evidentiary hearing on this
matter.

As a full statement of the facts is contained in our opinion on the prior appeal,
see United States ex rel. Rivera v. McKendrick, supra, we here repeat only so
much as is necessary: On March 5, 1965, two men, one dark-skinned and the
other light-skinned, robbed a grocery store in Brooklyn. Two people were in the
store at the time: Vega, an employee, and Vargas, a customer. The darkskinned man, who held a gun on the two victims while the light-skinned man
emptied the cash register, was later identified as Torres, Rivera's co-defendant.
As the light-skinned man attempted to take Vega's wallet, a struggle broke out
during which Vargas was shot twice. The light-skinned accomplice fled after
the first shot and Torres followed soon after. The length of time that the two
men spent in the store was estimated at three minutes. Torres was quickly
arrested. Three days later an alarm was sent out for Rivera.1

According to the trial testimony, both Vega and Vargas were subsequently
shown a group of photographs of different men, including one of Rivera, for
purposes of identification. There was also some suggestion that Vega may have
been shown Rivera's picture alone, either before or after the showing of the
group of photographs. However, because New York has a rule which prohibits
a witness from testifying about prior photographic identifications of a
defendant, there was no testimony at the trial as to whether Vega or Vargas
picked out Rivera's photographs, and the photographs which were shown to the
victims were not offered in evidence.

Rivera was finally arrested in his attorney's office on March 17, 1965.

Detective Maxwell, the police officer investigating the case

.7. . first took Rivera to the station house, and he then called Vega and instructed him
to come to the hospital where he was "going to have someone down for him [Vega]
to identify." Maxwell presented Rivera to Vega in the hospital waiting room and
asked Vega whether he "knew the guy." Vega said "yes" and Rivera remained silent.
Maxwell then took Rivera into Vargas' hospital room, but there was no testimony as
to whether Vargas identified him there. Maxwell never took either witness to the
police station to identify Rivera in a lineup.
8
Both
Vega and Vargas testified at trial in the Kings County Supreme Court, and both
made an in-court identification of Rivera as the light-skinned man involved in the
robbery.
9

United States ex rel. Rivera v. McKendrick, supra, 448 F.2d at 31-32.

10

The jury returned a verdict of guilty against both Rivera and Torres and the
Appellate Division, Second Department, affirmed. People v. Rivera, 28 A.D.2d
687, 280 N.Y.S.2d 749 (2d Dept. 1967). Thereafter, the New York Court of
Appeals (4-3) also affirmed. People v. Rivera, 22 N.Y.2d 453, 293 N.Y.S.2d
271, 239 N.E.2d 873 (1968).

11

We instructed the district court to inquire on remand into the circumstances

surrounding the photographic sessions and the hospital confrontations, as well
as the question of whether the victims had an adequate opportunity to observe
Torres' accomplice-all with a view to making a determination of the presence or
absence of taint. Pursuant to our mandate Judge McLean conducted a thorough
hearing on the question of taint in which all these matters were fully explored.
Detective Maxwell and the two victims, Vega and Vargas, testified about
events on the night of the robbery and about the subsequent pretrial
identifications. Judge McLean found that the victims had had ample
opportunity during the robbery to get a good look at the second man. The
delicatessen was "a very small, narrow slot of a" store where "anybody in it
could get a reasonably good idea of what was going on in any part of the
establishment."2 During the approximately three minutes that the robbery was
in progress, Vega was able to get a "good look" at Torres' accomplice, and
Vargas, though slightly further away, also had "a good look at" the darkskinned robber.

12

Immediately after the robbery Vega described the second robber "as being a
light skinned Puerto Rican of about 21 years of age, thin faced"-a description
which matches Rivera's physical appearance. The evidence which was absent

from the trial record but developed at the hearing concerning the two
photographic identifications indicates that both Vega and Vargas positively
selected Rivera's photograph as that of the accomplice from a group of
photographs that were presented to them.3 Similarly, not only Vega, but also
Vargas unhesitatingly identified Rivera as Torres' accomplice during the
hospital show-up.
Judge McLean stated that:
13
[b]oth
these men testified before me that they knew all the time from the very
beginning that this was the man who had robbed Vega and participated in the holdup
. . . I accept their testimony. I find that they did know from the very beginning that
Rivera was the man, as I have no doubt he was.
14

Judge McLean concluded, therefore, that the victims' in-court identifications

were not tainted by the prior identifications which we thought had been
impermissibly suggestive. United States ex rel. Rivera v. McKendrick, supra,
448 F.2d at 32. This finding of the absence of taint is fully supported by the
record at the hearing. We therefore affirm Judge McLean's denial of the
petition.

15

We again commend assigned counsel, John R. Hupper and J. Barclay Collins,

for their diligent and expert exposition of Rivera's claims.

16

Affirmed.

Detective Maxwell testified at the hearing before Judge McLean that Rivera
came under suspicion after an investigation of Torres' background and the
places that Torres frequented in the Bronx revealed that Rivera fit the
description of the accomplice and was known as an associate of Torres

Judge McLean's findings were made orally at a hearing held on April 17, 1972.
The language quoted here and later in the text comes from Judge McLean's
findings at this hearing

Despite the suggestion in the trial testimony that Vega may have been shown a
single photograph of Rivera for identification purposes, no evidence as to this
matter was developed at the hearing. It appears that both victims were
presented with a group of photographs. Although the specific photographs
which were used could not be located, Detective Maxwell testified that it was

his practice at that time to select pictures of people from the same age and
ethnic group as the suspect